R. v. Douwe (David) De Boer & Inland Packers Ltd. Date:, 2012 BCPC 66

Citation: R. v. Douwe (David) De Boer & Inland Packers Ltd. Date: 20120306 2012 BCPC 0066 File No: 20344 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DOUWE (DAVID) De BOER INLAND PACKERS LTD. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Crown: D.R. Kier, Q.C. Counsel for the Defendant: G. Verdurmen and P. Danyliu Place of Hearing: Salmon Arm, B.C.

Dates of Hearing: March 5 and 6, 2012 Date of Judgment: March 6, 2012 [ 1 ] The question for the Court today is whether or not a delay of just over two years to bring a relatively straightforward administrative prosecution to trial violates the accused’s right to have their trial within a reasonable time. Inland Packers Ltd. operated a meat packing plant in Salmon Arm, British Columbia. Mr. De Boer was the principal of that company and oversaw its operations.

On February 19, 2010, an Information was laid charging De Boer and Inland Packers Ltd. with four offences under the Meat Inspection Act R.S.C. 1985 ch.25. [ 2 ] The Crown alleges that the accused obstructed the work of a certain veterinarian, Dr. Ray Fletcher, who was tasked with inspecting the accused’s meat production processes. None of the delay bringing this matter to trial is attributable to either the Corporate or individual accused and can be fairly described as either institutional delay or “other delay” as that term is used in the authorities.

The accused has personally suffered a great deal of stress and anxiety as a result of having this protracted litigation hanging over his head and, for the reasons that follow, the only reasonable result is that these proceedings be stayed. [ 3 ] The accused De Boer with his partner operated a company called Inland Packers Ltd. This company had opened a state-of-the- art facility in Salmon Arm to slaughter and prepare hogs for resale both locally and internationally. The facility had obtained a federal license to conduct its meatpacking business under the Meat Inspection Act R.S.C. 1985 ch.25.

That Act requires a rigorous series of inspections and processes be undertaken in order to ensure that the end product coming from that facility is as safe as possible for human consumption. One of the many requirements of such a facility is to have on staff a certified veterinarian who is charged with overseeing the entire operation from slaughter to production.

This veterinarian is equipped with several procedures available to him to ensure that the operation is complying with both the letter and intent of the Act. [ 4 ] The Crown alleges that between January 14, 2009 and February 18, 2009 in four separate ways, the accused interfered with the work of the veterinarian and as such obstructed his ability to carry out his duties in violation of section 14(1) of the Act . It is apparent from the affidavits filed that there was a considerable amount of conflict between Dr. Fletcher, the veterinarian, and the accused who operated the meatpacking plant.

This conflict culminated in events that took place on January 14, 2009 when Mr. De Boer is alleged to

have removed Dr. Fletcher from the meatpacking plant. This resulted in the plant being temporarily shut down, but, after somediscussion and accommodation, reopened briefly although at a fraction of its original production. Regrettably the plant remaineduneconomical and ultimately had to be closed down. [5] Dr. Fletcher provided a statement to the police shortly after the events complained of. The investigation by the police wouldnecessarily have been a relatively straightforward matter but a year went by before the Information before this Court was sworn onFebruary 19, 2010.

No explanation was provided for this delay in swearing the Information nor was any material before the Courtsuggesting that the delay was necessary for investigative purposes. In submissions, the Court was advised that the majority of the delayswere the result of the initial Crown assigned to laying the Information falling ill. While pre-charge delay is not a factor to be consideredin the analysis under

section 11(

b) of the Charter, it is a factor to be considered certainly when assessing prejudice and determining theappropriate relief. There is no doubt that some of the actual prejudice suffered by the accused at bar was exacerbated by the delay inlaying the Information. [6] Following the laying of the Information the accused, through their counsel, can only be said to have moved as quickly as possibleto bring this matter to trial and that the substantial delay in the process is solely as a result of factors completely beyond their control.The history of the proceedings are as follows: 1.

The accused’s First Appearance in answer to a summons was March 30, 2010. 2. Two weeks later, on April 13, 2010, an Arraignment Hearing was conducted and not guilty pleas were entered. 3. As is consistent with the practice of this Court, the matter was adjourned for a pre-trial conference which occurred on May 26,2010. Pre-trial conferences are necessary in any matter that is to be scheduled in excess of one day. 4. Following the pre-trial conference the matter was adjourned to June 1, 2010 to fix a date for trial. The first trial date was December13 and 14, 2010. 5.

On November 9, 2010 a Trial Confirmation Hearing was conducted at which time the Court was advised the matter was ready toproceed and the Crown and Defence were prepared to proceed on the dates scheduled. 6. At the commencement of the trial on December 13, 2010, the presiding judge advised counsel that he needed to recuse himself fromhearing the trial as a result of a conflict. Prior to arriving in Court on that date, there is no reason to believe that either of the parties hadany way to anticipate that such a result could or would occur.

Following the recusal, the matter was adjourned to fix a new date for threedays of trial. The new trial date was set for August 22-24, 2011. 7. On August 22, 2011 the trial was again adjourned as a result of the illness of Crown counsel that was specially assigned toprosecute this case. The matter was reset for the next available trial date - March 6, 2012. 8. It should be noted that the March 6, 2012 trial date was set as a priority and on top of a number of other trial matters which werethemselves very dated.

As an example, this trial was set to commence on a date when a two day preliminary inquiry for charges alleginga serious extortion and counseling to commit an indictable offence, which matter was already 329 days old, was scheduled to proceed. Similarly, an impaired driving trial had also been scheduled to proceed, that case was 223 days old. On the second date for this matter, being March 6, 2012, there were also a number of other trial matters already set for hearing as well asa number of other “in custody” cases - individuals seeking to dispose of their cases or were seeking judicial interim release.

It is apparentthat this two to three day trial will certainly not complete in the three days in which it is scheduled and a further adjournment will benecessary for at least one day of further evidence. The Court must consider this prospective delay as well in the analysis. [7] I have considered carefully all of the cases and written arguments placed before me by counsel. The analysis starts with a carefulconsideration of the decision of the Supreme Court of Canada R. vs. Morin (1992) (SCC), 1 S.C.R. 771. In particular, theCourt must always be mindful of the very purpose of the rights enshrined in

section 11(

b) which are described as follows: The primary purpose of s. 11(

b) is the protection of the individual rights of the accused. A secondary interest of society as a whole has,however, been recognized by this Court. I will address each of these interests and their inter-action. The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) theright to a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place

while evidence is available and fresh. The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that theleast fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy theconfidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value.

The constitutional guarantee ensures to the benefit of society as a wholeand, indeed, to the ultimate benefit of the accused ..." (p. 96). In some cases, however, the accused has no interest in an early trial andsociety's interest will not parallel that of the accused. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Courtrecognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was picked up inAskov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial anddealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accusedbe brought to trial.

The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accusedof serious crimes simply to clean up the docket. [8] The analysis requires a threshold determination of whether or not the delay in the matter coming on for trial is one that calls foran explanation. See Morin at para. 32. I find that, in this jurisdiction, a delay of 24 months to bring a straightforward two or three daytrial to commencement is unreasonable.

I must now go on and consider whether that unreasonableness was such that it violated theaccused’s rights under the Charter. [9] These factors to be considered in Morin are as follows: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including: a. The inherent time requirements of the case, b. Actions of the accused, c. Actions of the Crown, d. Limits on institutional resources, and e. Other reasons for delay; and f. Prejudice to the accused. I will assess each of these factors in light of the facts of this case. 1.

The Length of the Delay [10] Under this factor I must examine the length of time from the swearing of the Information on February 19, 2010 to the date set fortrial of March 5, 2012. Under this factor I am also obliged to consider the delay between the time of the offence and the swearing of theInformation. [11] This was a straightforward matter involving the actions of principally two individuals, the accused and the veterinarian, Dr.Fletcher. The actus reas was complete by February 18, 2009.

I have been given no explanation other than the illness of the first Crowncounsel assigned to the file as to why a case of this simplicity would take 12 months to swear an Information. I find that the delay pre-charge is unreasonable and, while I do not consider it in the

section 11(

b) analysis, it is a factor that weighs against the Crown as Ibalance all of the other.

[12] I find that the length of the delay of 24 months post-charge and 12 months pre-charge are sufficient to require inquiry into thereasons for that delay. (Morin at para. 66) 2. Waiver of time periods [13] There has clearly been no waiver by the accused of any of the time periods involved in the delay. 3. The reasons for the delay (

a) inherent time requirements [14] This is not a complex case. The Crown alleges that by words and actions the accused prevented or obstructed the veterinarianfrom doing his important work at the slaughterhouse. The accused had entered his plea within weeks of the First Appearance date,reflecting the fact that he had received his disclosure, studied the case and was prepared to proceed.

There was a brief delay for thepurposes of the pre-trial conference which could also be an inherent requirement of the case, but that was minimal in the overall time thiscase has taken. [15] The substantial portion of the delay was caused by two factors, neither of which were in the control of the accused. They werethe judge’s recusal on the date of the first trial and the Crown's illness on the date of the second trial. I will deal with each of those issuesseparately. i. The recusal of the trial judge [16] It is clear that the trial judge recused himself at the commencement of the first hearing for good reason.

From the materials it isappears that the accused and the trial judge were members of the same Church and congregation. At the commencement of the first trialmany members of the accused’s, and therefore the judge’s, congregation were in attendance at the trial. I accept the accused’sexplanation, and it is consistent with local practice, that he had no reason to know that any particular judge would be assigned to his caseand had no involvement in orchestrating the recusal.

Rather, the more natural inference is that members of the congregation attended tosupport a fellow member, but regrettably that left the trial judge in a position where he did not feel that he could exercise the high level ofimpartially required of him. It is apparent from the authorities that this recusal will be described as an inherent time requirement of thecase. [17] I believe the analysis of R. vs. MacDougall (1998) (SCC), 128 C.C.C. (3d) 483 (S.C.C.) fully captures thisissue.

The court in that case was dealing with whether or not a judge’s illness, falling as it did between the time of the guilty plea and thetime of sentencing, was captured by

section 11(b). The court found that the period between conviction and sentencing was indeedprotected by

section 11(b). The court went on to consider the illness of the trial judge as a factor in the

section 11(

b) analysis. In that casethe court wrote: The inherent time requirements of a sentencing are not limited to common place delays which occur in every situation, but may includedelay due to extraordinary and unforeseen events… A trial judge falling ill may be such an event. Judges, being human, it is inevitablethat they will occasionally fall ill.

The inherent time requirements of sentencing may also include a judge’s illness up to the point whereit is reasonable for the Crown to apply to have the judge removed and replaced." [18] I agree with Crown counsel’s submission that the trial judge’s recusal is tantamount, in this instance, to a judge’s illness. Thatdoes not mean, however, that the time lost as a result of that recusal is not to be considered, rather, it simply becomes a factor of lessweight in the analysis than one for which either the accused or the Crown are directly responsible.

The Court writes “the reasonablenessof the inherent time requirements of sentencing must be assessed on a case-by-case basis" MacDougall at para. 47. In this sense it is notthe fault of the Crown but by the same token it is also not the responsibility of the accused. In my opinion it stands to be considered inthe same way as the second lost trial date, the illness of Crown counsel. ii. The illness of Crown counsel [19] The second trial date was lost as a result of a sudden and unexpected illness of Crown counsel.

As a matter of professionalcourtesy, counsel for the accused obtained instructions and did not oppose the adjournment. Efforts were made thereafter to secure thenext available trial date which was many months away. I except the analysis in Regina vs. Purchase 2012 BCSC 208 , 2012B.C.S.C. 208 where Mr. Justice Brown found that delay occasioned by the illness of the Crown did not fall at the feet of the Crownrather, it should properly be characterized as part of the inherent time requirements of the case. See para. 107.

The court in that casefound that the time between the illness and the next trial date is properly characterized as systemic delay. [20] Considering the inherent time requirements of the case, I am satisfied that the delay, though explained, continues to beunreasonable. I do not ascribe any fault to any party as a result of these inherent time requirements and give greater weight in thisinstance to society’s interests in having the case fairly heard. (

b) Actions of the accused [21] In this case the accused did nothing that would indicate either that he was waiving his right to trial within a reasonable time, northat he was taking any steps to cause or facilitate delay. To the contrary, the accused's First Appearance was set for March 30, 2010where the matter was adjourned two weeks to review the disclosure and on April 13, 2010 the accused was arraigned. All delaythereafter was either systemic or the inherent time requirements of the case as indicated above.

The record reflects, and the affidavitsupports, that the accused was not an individual endeavoring to use the system to avoid a trial but rather the accused has always beenanxious to be heard and being thwarted by matters beyond his control. (

c) Actions of the Crown

[22] Except for the pre-charge delay, I have no occasion to find fault with the conduct of the Crown. Other than their unexpectedillness, the Crown appeared at all times to have been ready, willing and able to proceed. (

d) Limits on institutional resources [23] Considering this factor I must assess, as best I am able, the institutional resources particular to this location and the guidanceprovided to the Court by our appellate courts. Unfortunately I have received a limited amount of material with respect to institutionalresources and I am cautious in my analysis of this factor. Obviously, if there were more judges, clerks, sheriffs and Crown counselavailable, it is reasonable to assume that the delays attendant on each of the unforeseen circumstances would have been vastly shorter.

Iam also mindful that the causes of delay in the justice system are far more complex and nuanced than simply an assertion that moreresources must be provided. [24] In the Report of the Chief Judge of the Provincial Court for the years 2009 and 2010, the Court indicated that the average time totrial for a two day matter was 10 months.

The most recent statistics for this Court, and the Salmon Arm Registry specifically, show thatthe estimated time to trial for any criminal matter of two days or more is seven months. (Monthly Report of the Administrative Judge forthe Okanagan, February 2012) [25] I am struck by the comments of my brother Judge Threlfall in R. vs. Dunn Salmon Arm Registry No. 20185 when he writes, Inmy view, the failure of government to provide sufficient resources to allow a straightforward matter of this sort to be heard within areasonable period of time should not be visited on Mr. Dunn.

In that decision the Court found that a delay of nineteen months in thisRegistry for a straightforward one day matter infringed the accused’s

section 11(

b) rights and directed a stay of proceedings. [26] I also must consider the Supreme Court of Canada in Morin suggested a timeline of between eight to ten months as a reasonableobjective for this Court. It is interesting to note that that same timeframe is reiterated in both MacDougall and more recently in R. v.Godin 2009 SCC 26 , 2009 S.C.C. 26. It does not appear the Supreme Court of Canada has found any reason to change thebenchmarks established in its early jurisprudence. (

e) Other reasons [27] While I am inclined to believe that the recusal of the trial judge properly falls under the rubric of “other reasons", I have coveredit fully in the sections above. 4. Prejudice to the accused [28] Prejudice arises in three ways, first to the security interests of the accused, second to the liberty interests of the accused andfinally to the fair trial interests of the accused. [29] In this case the accused filed an affidavit which articulates fully the substantial prejudice suffered by him and his company as aresult of these protracted proceedings.

From an analysis of the record and of the affidavit, it is apparent that all the prejudice that arises inthis case is prejudice to the security of the accused and his right to a fair trial and there is no prejudice to the accused in the sense of aloss of liberty.

The Court in this case accepts the evidence of the accused in his affidavit that preceding each of the separate trial dates hesuffered substantial anxiety, sleeplessness and loss of enjoyment of life. [30] He deposes in his affidavit that he was required to seek medical attention for this anxiety and indeed, prior to the first trial date,contracted a nervous disorder commonly known as “shingles”.

I accept as well, his stark statement that in the relentless anxiety of thismatter he has suffered from suicidal thoughts. [31] Crown counsel in his submission carefully pointed out that the ultimate collapse of Inland Packers Ltd. was not caused by theactions of the Crown or this protracted litigation. I accept that fact. Having said that, however, it is to be remembered that this litigationoccurred at a time when the accused’s businesses had failed, his income had collapsed and his health deteriorated. The Crown mustaccept the accused as he finds him.

It is not an excuse for the Crown to suggest that a man in better circumstances would not havesuffered so significantly. Each case must be decided on its own merits and in light of the circumstances unique to that case and thataccused person. [32] I also accept that the personal struggles suffered by the individual accused as a result of this proceeding is not necessarily theprejudice of the corporate accused. R. vs. C.I.P (1992) (SCC), 71 C.C.C. (3d) 129 (S.C.C.). However, in this instancewe are dealing with a corporation whose principal business has collapsed as a result of a myriad of reasons.

The value of the business isdoubtlessly substantially reduced as a result of this litigation hanging over it and the principal operator of this closely held company isindeed the individual accused who is himself not able to properly execute his duties to the company. Further, both the accused and thecompany have suffered significant additional legal expenses because of the two lost trial dates.

As a result I also find that there has beensignificant prejudice to the corporate accused for this unreasonable delay. [33] In considering prejudice I also consider the fact that three years from the date of the delict to the date of trial seriouslycompromises the ability of witnesses both for the Crown and the defence to accurately recollect detailed conversations that took place atthe time of the alleged offences.

Society is greatly diminished in its respect for justice when a trial proceeds in a manner in which theevidence is so substantially diminished. [34] Considering all of the above I am satisfied that the accused have met the burden on them to prove that their rights under section11(

b) have been seriously violated. Pursuant to section 24(1) of the Charter, I direct a stay of proceedings.

________________________________ The Honourable Judge D.M. McKimm